The Senate's ADA Amendments Act: Only Half Bad

The Senate's ADA Amendments Act: Only Half Bad

Most Americans would probably be surprised to learn that, with
the economy slowing and unemployment ticking up, Congress is hard
at work on legislation that would increase the regulatory burden on
employers, even as it considers further economic stimulus
proposals. Yet, toward the top of Congress's agenda for the year is
the ADA [Americans with Disabilities Act] Amendments Act (S. 3406),
a version of which has already passed the House (H.R. 3195) and
will, according to observers, sail through the Senate. Lacking the
numbers to block this legislation, conservatives in Congress still
have the opportunity to at least ameliorate its potential negative
effects by insisting on a bill that does not uproot nearly two
decades of experience under the ADA and throw employment disability
law into chaos. The way to do that is to build on the superior
Senate version of the legislation.

Replacing a Cipher with a Cipher

It is particularly important that the definition of "disability"
be clear so that employers can meet their obligations under the law
with minimal confusion and expense. Under current law, a disability
is defined as "a physical or mental impairment that substantially
limits one or more major life activities."[1]Whether an individual is
disabled determines whether an employer must investigate and
implement accommodations and whether an employer is subject to
liability under the ADA for failing to do so.

The House's proposed legislation would radically amend this
definition. Unlike the original ADA Restoration Act, which would
have done away with the concept of "disability" altogether, the
current House bill maintains the ADA's three-prong core
definitional text. But it would define "substantially limits" to
mean "materially restricts" for the purposes of the first prong of
the definition of disability. Thus, any impairment that "materially
restricts" a person from performing any major life activity (e.g.,
eating, concentrating, or sleeping) would constitute a disability
for the purposes of the law. The purpose of this change, according
to its drafters, is to overturn the Supreme Court's decisions in
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534
U.S. 184 (2002), and related cases that served to limit the
coverage of the ADA's protections.[2]

The main problem with expanding the ADA's coverage in this
manner is that, in the context of disability law, the phrase
"materially restricts" has no established meaning. It is wholly
absent from the statutory law, regulatory texts, and court
decisions. Even dictionaries provide several contradictory
meanings. The legislative history--to which some judges resort when
statutory language, as here, is vague--provides no clear answer
either. It counsels that "materially restricts" is "intended to be
a less stringent standard to meet" than that propounded in
Williams.[3] Elsewhere, the drafters advise that
"'materially restricted' is meant to be less than a severe or
significant limitation and more than a moderate limitation, as
opposed to a minor limitation."[4] Some suggest, however, that
the phrase may be susceptible to meanings that would render
"stomach aches, a common cold, mild seasonal allergies, or even a
hangnail" disabilities.[5]

The impact of this uncertainty on employers could be severe. It
is evident that, under the House bill, accommodation costs would
rise, as more workers become entitled to more accommodations. That,
after all, is the point of the legislation. But at the same time
that a much larger portion of the workforce would fall under the
ADA's protections, the law would also become far more uncertain,
driving up compliance costs and legal expenses. Although the House
bill is supported by some business lobbies (representing mostly
larger corporations), it is small businesses that are likely to
suffer disproportionately, as is usually the case when there is
regulatory complexity or legal uncertainty.

The Senate's More Sensible
Approach

The Senate's version of the legislation commendably avoids the
major infirmity of the House bill, the "materially restricts"
language. While the Senate bill is still intended to overrule
Williams and other Supreme Court interpretations of the ADA,
it takes a far more measured approach than the House's
legislation.

Two changes made between passage of the House bill and
introduction of the Senate bill are especially important. First,
the Senate bill simply omits the redefinition of "substantially
limits" to mean "materially restricts." This ensures that the case
law developed since enactment of the original ADA retains some
relevance in future disability cases. This advances legal
certainty, cutting down on unnecessary litigation and reducing the
burden and expense of compliance. Legal clarity is also advanced by
absence of a new, empty standard, which could take years for the
courts to clothe with consistent, predictable meaning.

Second, the Senate bill revises the House's command that the
definition of disability "shall be construed broadly" to achieve
the ADA's purposes. As several commentators noted, this was an
unusual formulation, for it encouraged the courts to read beyond
the actual words of the legislation in their construction of its
meaning. Though "broad construction" provisions are hardly unusual,
they usually direct the reader to some specific end, such as
including a particular item within a standard or keeping in mind a
particular factor. Here, however, was a bare order to put a thumb
on the scale, further undermining legal certainty and consistency
of results. The Senate bill corrects this poor draftsmanship,
clarifying that the act is to be constructed "in favor of broad
coverage of individuals under this Act, to the maximum extent
permitted by the terms of this Act."[6] Arguably, this provision has
little meaning (courts should, of course, construe a statute as its
terms require), but that is a far better result than statutory
obfuscation.

In short, the Senate bill, while still advancing ill-conceived
policies at a time when the nation can least afford to do so, is
far less damaging and irresponsible than its House counterpart.

Next Steps

Ideally, Congress would leave the ADA as it is. But if
legislation is inevitable, as seems to be the case, there are
several ways in which the Senate bill might be amended so as to
reduce its impact on the economy and jobs:

First, if Congress wishes to overrule the Supreme Court's
holding in Sutton v. United Air Lines, Inc., 527 U.S. 471
(1999), in which the Court ruled that mitigating measures would be
considered in determining whether a disability exists, it should do
so in a narrower way than in the current bills. Specifically, both
bills, as drafted, exclude ameliorative measures from the
disability determination but for ordinary eyeglasses and contact
lenses. In this, the bill's drafters recognize that mild visual
impairments are not disabilities and that according them legal
protection would be unduly expensive and counterproductive.
Congress should extend this reasoning and, at the least, exclude
from the mitigating measures rule other prevalent ameliorative
devices, such as most hearing aids and joint braces, and perhaps
even, as the bills would currently bar from consideration, "learned
behavioral or adaptive neurological modifications," an apparent
reference to an individual's ability to learn to work around an
impairment.

Second, Congress should restore to its bills guideposts used by
the courts to determine the scope of the ADA. Congress's intention
this time around is obviously to expand coverage, but there is
great debate about exactly how far. Rather than punt that issue to
the courts, Congress should continue to state its best estimate of
how many Americans it intends to be covered by the act.

Third and finally, Congress should take a hard look at the
compliance costs of the ADA and consider advancing job creation and
economic growth by exempting more small businesses from the act's
coverage. At present, the ADA employment provisions do not apply to
businesses employing fewer than 15 workers, and neither the House
nor the Senate legislation would change this. This exemption is an
acknowledgement that complying with the ADA is difficult and costly
and that it puts smaller businesses at a disadvantage relative to
their larger competitors.[7] Small businesses, as has been well
documented in the economics and finance literature, are the driver
of employment growth, particularly when larger firms are reluctant
to increase headcount.[8] If Congress wishes to give a boost to the
economy and to those seeking employment, it could do far worse than
to inch up the exemption threshold to 25 or even 50 employees.

Limit the Damage

The Senate's ADA Amendments Act represents a real and tangible
improvement over the House version, which would have abandoned a
large body of important case law, throwing the employment
disability law into disarray. In contrast, the Senate's approach,
while still bad policy on the whole, is far less damaging to the
law, and for that reason, its impact on the economy, the
international competitiveness of U.S. businesses, and employment is
likely to be far less. Now is not the right time to expand ADA
coverage, but if legislation is inevitable, Congress should still
reject approaches that muddy the meaning of the law and would
inflict unnecessary pain across the economy.

Andrew M. Grossman is
Senior Legal Policy Analyst in the Center for Legal and Judicial
Studies at The Heritage Foundation.

[6]
This parallels language used in the Religious Land Use and
Institutionalized Persons Act of 2000, Pub. L. No. 106-274, 42
U.S.C. § 2000cc-3(g).

[7] The
exception parallels that of Title VII of the Civil Rights Act of
1964, which is less burdensome on employers than the ADA due to the
nature of the classification and the ADA's accommodation
process.

[8]See
generally, David L. Birch, Job Creation in America: How Our
Smallest Companies Put the Most People to Work (New York:
Macmillan, Free Press, 1987).